The draft White Paper summarizes fundamental differences between fission and fusion technology hazards, observing that the radiological hazards associated with fusion technologies are “much lower,” noting that the NRC staff engaged inter alia with subject matter experts from the Department of Energy, national laboratories and developers to assess potential risk from different fusion energy designs.

The paper analyzes three regulatory approach options: Option 1—Regulate fusion energy systems under a utilization facility framework (e.g., 10 CFR Part 50 et seq.); Option 2—Regulate fusion energy systems under a byproduct materials framework (e.g., 10 CFR Part 30 et seq.); and Option 3—Regulate fusion energy systems under a hybrid approach.

With respect to Option 1, the paper notes that fusion energy systems are not currently included in the Part 50 regulatory definition of utilization facility. Fusion energy systems could, if needed, be classified as utilization facilities under the Atomic Energy Act (AEA) if the NRC determines by rule that fusion energy systems make use of atomic energy “in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public.” Fusion energy systems have the potential to expose members of the general public and workers to various types of radiation. If the Commission decides that fusion energy systems should be regulated under a utilization facility framework, the staff would then take a multi-step approach to ensure that the NRC’s regulatory framework for advanced reactors (10 CFR Part 53) could accommodate fusion energy systems. The paper provides, however, that (1) the potential hazards of current fusion energy systems appear lower than typical utilization facilities (and more similar to byproduct material facilities); (2) the NRC will need to consider how AEA requirements and restrictions for utilization facilities apply to fusion facilities, including those related to financial protection (e.g., Price-Anderson Act); foreign ownership control, or domination; mandatory hearings, etc.; (3) there is a potential for longer-term rulemaking to tailor the regulatory framework appropriately based on licensing and operating experience; and (4) classifying fusion energy systems into the utilization regulatory framework would be inconsistent with majority of stakeholder feedback the NRC staff received.

With respect to Option 2, the paper identifies key advantages of regulating fusion energy systems within the Part 30 framework for licensing byproduct material, such as scalability and comprehensiveness. The NRC has previously used the Part 30 approach to license facilities designed to utilize large quantities of radioactive materials for commercial use. Within Option 2, the paper offers two sub-options: 2a (Part 30: no rulemaking, where fusion companies meet requirements under the existing Part 30 licensing framework), and 2b (Part 30: limited rulemaking, where certain changes are made to include definitions for fusion devices to meet near-term research and development and commercial requirements).

Under Option 2a (Part 30: no rulemaking), advantages include: (1) Part 30 provides an existing framework that is scalable to regulate a wide range of potential fusion hazards and risks; (2) existing fusion devices in Agreement States have been successfully licensed with no additional regulations; (3) anticipated near-term fusion devices could be licensed under the existing definition of a “particle accelerator;” (4) rulemaking may be initiated in the future after gaining insights from licensing and operational experience; (5) guidance development can be completed consistent with existing regulations and with industry progress; and (6) guidance would bolster compatibility across NRC and the Agreement States and provide some regulatory predictability for industry and clarity for public stakeholders. On the other hand, the paper explains that (1) the approach is not technology-inclusive of some future fusion designs that do not meet the current definition of particle accelerator; (2) a future rulemaking may be necessary to address regulation of fusion devices that do not meet this definition; (3) NRC staff may identify that rulemaking is necessary to provide regulatory clarity and reliability during the development of guidance which would delay framework implementation; (4) for fusion designs that may fall outside of the existing Part 30 framework, lack of a consistent approach among the Agreement States and NRC would not provide regulatory predictability for industry and the public; and (5) larger, higher hazard commercial fusion facilities may need license conditions to implement scaling considerations related to emergency planning, physical security, tritium loss and waste management.

Under Option 2b (Part 30: limited rulemaking), advantages include, in addition to those described in 2a above: (1) a limited scope rulemaking would ensure a technology-inclusive approach that encompasses all currently envisioned fusion energy system designs; (2) new Part 30 application content requirements would allow for risk-informed scaling of existing byproduct material requirements including those for emergency planning, physical security, and facility design, and (3) regulations and guidance along with their associated compatibility designations would align fusion oversight across NRC and the Agreement States. In contrast, the paper notes that (1) rulemaking may be more resource-intensive than a guidance-only approach; and (2) a future rulemaking may still be desired to improve efficiency of fusion device licensing.

With respect to Option 3, the paper analyzes the development of hybrid approaches to address the licensing and regulation of fusion energy systems, e.g., where the NRC would distinguish between different fusion energy systems and address some designs using a utilization facility model, and address others using a byproduct material model. Decision criteria could involve parameters such as estimated offsite consequences or inventories of key radionuclides (e.g., tritium). This approach could provide a graded range of options that would encompass the full range of potential fusion technologies, subjecting facilities with greater hazards to utilization facility requirements. Primary challenges with hybrid approaches include that: (1) they require a more substantial rulemaking to develop decision criteria and revise regulations associated with both utilization facilities and byproduct materials; (2) decision criteria would be difficult to develop given the broad array of fusion technologies; and (3) they may introduce near-term uncertainty for industry, Agreement States and public stakeholders.

The paper also explains that if the Commission determines that fusion energy systems should be regulated under a hybrid approach, the staff could, in parallel, begin the rulemaking process to add provisions to both Parts 30 and 53 to include fusion energy systems, combining the actions described for Options 1 and 2.

In conclusion, the draft White Paper provides a fresh assessment by NRC staff regarding the future regulation of fusion technologies. In particular, it highlights certain comparative advantages of Option 2, the Part 30-based regulatory approach, consistent with existing legal and regulatory requirements and fusion technology risks.